[Introduced March 25, 2013; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]

____________

A BILL to amend and reenact §14-2A-3, §14-2A-9 and §14-2A-12 of the
Code of West Virginia, 1931, as amended, all relating to
compensation awards to victims of crimes; increasing the
amount of victim relocation costs; permitting a victim’s
reasonable travels costs to attend probation hearings of the
offender; redefining a term; permitting the Court of Claims to
hire more than two claim investigators; and permitting claim
investigators to acquire autopsy reports, including toxicology
results, from the State Medical Examiner.

Be it enacted by the Legislature of West Virginia:

That §14-2A-3, §14-2A-9 and §14-2A-12 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:

ARTICLE 2A. COMPENSATION AWARDS TO VICTIMS OF CRIMES.

§14-2A-3. Definitions.

As used in this article, the term:

(a) “Claimant” means any of the following persons, whether
residents or nonresidents of this state, who claim an award of
compensation under this article:

(1) A victim, except the term “victim” does not include a
nonresident of this state where the criminally injurious act did
not occur in this state;

(2) A dependent, spouse or minor child of a deceased victim
or, if the deceased victim is a minor, the parents, legal guardians
and siblings of the victim;

(3) A third person, other than a collateral source, who
legally assumes or voluntarily pays the obligations of a victim or
a victim’s dependent when the obligations are incurred as a result
of the criminally injurious conduct that is the subject of the
claim;

(4) A person who is authorized to act on behalf of a victim,
dependent or a third person who is not a collateral source
including, but not limited to, assignees, persons holding power of
attorney or others who hold authority to make or submit claims in
place of or on behalf of a victim, a dependent or third person who
is not a collateral source and if the victim, dependent or third
person who is not a collateral source is a minor or other legally
incompetent person, their duly qualified fiduciary;

(5) A person who is a secondary victim in need of mental
health counseling due to the person’s exposure to the crime
committed whose award may not exceed $1,000; and

(6) A person who owns real property damaged by the operation
of a methamphetamine laboratory without the knowledge or consent of
the owner of the real property.

(b) “Collateral source” means a source of benefits or
advantages for economic loss otherwise compensable that the victim
or claimant has received or that is readily available to him or her
from any of the following sources:

(1) The offender, including restitution received from the
offender pursuant to an order by a court sentencing the offender or
placing him or her on probation following a conviction in a
criminal case arising from the criminally injurious act for which
a claim for compensation is made;

(2) The government of the United States or its agencies, a
state or its political subdivisions or an instrumentality of two or
more states;

(7) Proceeds of a contract of insurance payable to the victim
or claimant for loss that was sustained because of the criminally
injurious conduct;

(8) A contract providing prepaid hospital and other health
care services or benefits for disability; and

(9) That portion of the proceeds of all contracts of insurance
payable to the claimant on account of the death of the victim which
exceeds $25,000.

(c) “Criminally injurious conduct” means conduct that occurs
or is attempted in this state, or in any state not having a victim
compensation program, which poses a substantial threat of personal
injury or death and is punishable by fine, imprisonment or death or
would be so punishable but for a finding by a court of competent
jurisdiction that the person committing the crime lacked capacity.
Criminally injurious conduct also includes criminally injurious
conduct committed outside of the United States against a resident
of this state. Criminally injurious conduct does not include
conduct arising out of the ownership, maintenance or use of a motor
vehicle unless the person engaging in the conduct intended to cause
personal injury or death or committed negligent homicide, driving
under the influence of alcohol, controlled substances or drugs,
leaving the scene of the accident or reckless driving.

(d) “Dependent” means an individual who received over half of
his or her support from the victim. For the purpose of making this
determination there shall be taken into account the amount of
support received from the victim as compared to the entire amount
of support the individual received from all sources including
self-support. The term “support” includes, but is not limited to,
food, shelter, clothing, medical and dental care and education.
The term “dependent” includes a child of the victim born after his
or her death.

(e) “Economic loss” means economic detriment consisting only
of allowable expense, work loss and replacement services loss. If
criminally injurious conduct causes death, economic loss includes
a dependent's economic loss and a dependent's replacement services
loss. Noneconomic detriment is not economic loss, however, economic
loss may be caused by pain and suffering or physical impairment.
For purposes of this article, the term “economic loss” includes a
lost scholarship as defined in this section.

(f) “Allowable expense” includes the following:

(1) Reasonable charges incurred or to be incurred for
reasonably needed products, services and accommodations including
those for medical care, mental health counseling, prosthetic
devices, eye glasses, dentures, rehabilitation and other remedial
treatment and care but does not include that portion of a charge
for a room in a hospital, clinic, convalescent home, nursing home
or other institution engaged in providing nursing care and related
services which is in excess of a reasonable and customary charge
for semiprivate accommodations unless accommodations other than
semiprivate accommodations are medically required;

(2) A total charge not in excess of $10,000 for expenses in
any way related to funerals, cremations and burials;

(3) A charge, not to exceed $10,000, for cleanup of real
property damaged by a methamphetamine laboratory or a charge not to
exceed $1,000 for any other crime scene cleanup;

(4) Victim relocation costs not to exceed $2,000$2,500;

(5) Reasonable travel expenses not to exceed $1,000 for a
claimant to attend court proceedings and parole hearings conducted
for the prosecution of the offender;

(6) Reasonable travel expenses for a claimant to return a
person who is a minor or incapacitated adult who has been
unlawfully removed from this state to another state or country if
the removal constitutes a crime under the laws of this state which
may not exceed $2,000 for expenses to another state or $3,000 to
another country; and

(7) Reasonable travel expenses for the transportation of a
victim to and from a medical facility.

(g) “Work loss” means loss of income from work that the
injured person would have performed if he or she had not been
injured and expenses reasonably incurred or to be incurred by him
or her to obtain services in lieu of those he or she would have
performed for income. “Work loss” is reduced by income from
substitute work actually performed or to be performed by him or her
or by income he or she would have earned in available appropriate
substitute work that he or she was capable of performing but
unreasonably failed to undertake. “Work loss” also includes loss
of income from work by the parent or legal guardian of a minor
victim who must miss work to take care of the minor victim.

(h) “Replacement services loss” means expenses reasonably
incurred or to be incurred in obtaining ordinary and necessary
services in lieu of those the injured person would have performed
for the benefit of himself or herself or his or her family if he or
she had not been injured. “Replacement services loss” does not
include services an injured person would have performed to generate
income.

(i) “Dependent's economic loss” means loss after a victim's
death of contributions or things of economic value to his or her
dependents but does not include services they would have received
from the victim if he or she had not suffered the fatal injury.
This amount is reduced by expenses avoided by the dependent due to
the victim’s death.

(j) “Dependent’s replacement service loss” means loss
reasonably incurred or to be incurred by dependents after a
victim's death in obtaining ordinary and necessary services in lieu
of those the victim would have performed for their benefit if he or
she had not suffered the fatal injury. This amount is reduced by
expenses avoided due to the victim’s death but which are not
already subtracted in calculating a dependent's economic loss.

(k) “Victim” means the following:

(1) A person who suffers personal injury or death as a result
of any one of the following:

(A) Criminally injurious conduct;

(B) The good faith effort of the person to prevent criminally
injurious conduct; or

(C) The good faith effort of the person to apprehend a person
that the injured person has observed engaging in criminally
injurious conduct or who the injured person has reasonable cause to
believe has engaged in criminally injurious conduct immediately
prior to the attempted apprehension.

(2) The owner of real property damaged by the operation of a
methamphetamine laboratory which operation was without his or her
knowledge or consent.

(l) “Contributory misconduct” means any conduct of the
claimant or of the victim through whom the claimant claims an award
that is unlawful or intentionally tortious and that, without regard
to the conduct’s proximity in time or space to the criminally
injurious conduct, has a causal relationship to the criminally
injurious conduct that is the basis of the claim and includes the
voluntary intoxication of the claimant, either by the consumption
of alcohol or the use of any controlled substance, when the
intoxication has a causal connection or relationship to the injury
sustained.

(m) “Lost scholarship” means a scholarship, academic award,
stipend, student loan or other monetary scholastic assistance which
had been awarded, or conferred uponor obtained by a victim in
conjunction with a post-secondary school educational program and
which the victim is unable to receive or use, in whole or in part,
due to injuries received from criminally injurious conduct.

§14-2A-9. Claim investigators; compensation and expenses; paralegals and support staff.

The Court of Claims is hereby authorized to hire not more than
two claim investigators to be employed within the office of the
clerk of the Court of Claims, who shall carry out the functions and
duties set forth in section twelve of this article. Claim
investigators shall serve at the pleasure of the Court of Claims
and under the administrative supervision of the clerk of the Court
of Claims. The compensation of claim investigators shall be fixed
by the court, and such compensation, together with travel, clerical
and other expenses of the clerk of the Court of Claims relating to
a claim investigator carrying out his or her duties under this
article, including the cost of obtaining reports required by the
investigator in investigating a claim, shall be payable from the
crime victims compensation fund as appropriated for such purpose by
the Legislature.

The Court of Claims is hereby authorized to hire as support
staff such paralegal or paralegals and secretary or secretaries to
be employed within the office of the clerk of the Court of Claims,
necessary to carry out the functions and duties of this article.
Such support staff shall serve at the will and pleasure of the
Court of Claims and under the administrative supervision of the
clerk of the Court of Claims.

§14-2A-12. Investigation and recommendations by claim
investigator.

(a) The clerk of the Court of Claims shall transmit a copy of
the application to the claim investigator within seven days after
the filing of the application.

(b) The claim investigator, upon receipt of an application for
an award of compensation from the clerk of the Court of Claims,
shall investigate the claim. After completing the investigation,
the claim investigator shall make a written finding of fact and
recommendation concerning an award of compensation. He or she
shall file with the clerk the finding of fact and recommendation
and all information or documents that he or she used in his or her
investigation: Provided, That the claim investigator shall not
file information or documents which have been the subject of a
protective order entered under the provisions of subsection (c) of
this section.

(c) The claim investigator, while investigating the claim, may
require the claimant to supplement the application for an award of
compensation with any further information or documentary materials,
including any medical report readily available, which may lead to
any relevant facts aiding in the determination of whether, and the
extent to which, a claimant qualifies for an award of compensation.

The claim investigator, while investigating the claim, may
also require law-enforcement officers and prosecuting attorneys
employed by the state or any political subdivision thereof, to
provide him or her with reports, information, witness statements or
other data gathered in the investigation of the criminally
injurious conduct that is the basis of any claim to enable him or
her to determine whether, and the extent to which, a claimant
qualifies for an award of compensation. The prosecuting attorney
and any officer or employee of the prosecuting attorney or of the
law-enforcement agency shall be immune from any civil liability
that might otherwise be incurred as the result of providing such
reports, information, witness statements or other data relating to
the criminally injurious conduct to the claim investigator.

The claim investigator, while investigating the claim, may
also require the office of the State Medical Examiner to provide
autopsy reports including toxicology results.

Upon motion of any party, court or agency from whom such
reports, information, witness statements or other data is sought,
and for good cause shown, the court may make any order which
justice requires to protect a witness or other person, including,
but not limited to, the following: (1) That the reports,
information, witness statements or other data not be made
available; (2) that the reports, information, witness statements or
other data may be made available only on specified terms and
conditions, including a designation of time and place; (3) that the
reports, information, witness statements or other data be made
available only by a different method than that selected by the
claim investigator; (4) that certain matters not be inquired into,
or that the scope of the claim investigator's request be limited to
certain matters; (5) that the reports, information, witness
statements or other data be examined only by certain persons
designated by the court; (6) that the reports, information, witness
statements or other data, after being sealed, be opened only by
order of the court; and (7) that confidential information or the
identity of confidential witnesses or informers not be disclosed,
or disclosed only in a designated manner.

However, in any case wherein the claim investigator has reason
to believe that his or her investigation may interfere with or
jeopardize the investigation of a crime by law-enforcement
officers, or the prosecution of a case by prosecuting attorneys, he
or she shall apply to the Court of Claims, or a judge thereof, for
an order granting leave to discontinue his or her investigation for
a reasonable time in order to avoid such interference or
jeopardization. When it appears to the satisfaction of the court,
or judge, upon application by the claim investigator or in its own
discretion, that the investigation of a case by the claim
investigator will interfere with or jeopardize the investigation or
prosecution of a crime, the court, or judge, shall issue an order
granting the claim investigator leave to discontinue his or her
investigation for such time as the court, or judge, deems
reasonable to avoid such interference or jeopardization.

(d) The finding of fact that is issued by the claim
investigator pursuant to subsection (b) of this section shall
contain the following:

(1) Whether the criminally injurious conduct that is the basis
for the application did occur, the date on which the conduct
occurred and the exact nature of the conduct;

(2) If the criminally injurious conduct was reported to a
law-enforcement officer or agency, the date on which the conduct
was reported and the name of the person who reported the conduct;
or, the reasons why the conduct was not reported to a
law-enforcement officer or agency; or, the reasons why the conduct
was not reported to a law-enforcement officer or agency within
seventy-two hours after the conduct occurred;

(3) The exact nature of the injuries that the victim sustained
as a result of the criminally injurious conduct;

(4) If the claim investigator is recommending that an award be
made, a specific itemization of the economic loss that was
sustained by the victim, the claimant or a dependent as a result of
the criminally injurious conduct;

(5) If the claim investigator is recommending that an award be
made, a specific itemization of any benefits or advantages that the
victim, the claimant or a dependent has received or is entitled to
receive from any collateral source for economic loss that resulted
from the conduct;

(6) Whether the claimant is the spouse, parent, child, brother
or sister of the offender, or is similarly related to an accomplice
of the offender who committed the criminally injurious conduct;

(7) Any information which might be a basis for a reasonable
reduction or denial of a claim because of contributory misconduct
of the claimant or of a victim through whom he or she claims;

(8) Any additional information that the claim investigator
deems to be relevant to the evaluation of the claim.

(e) The recommendation that is issued by the claim
investigator pursuant to subsection (b) of this section shall
contain the following:

(1) Whether an award of compensation should be made to the
claimant and the amount of the award;

(2) If the claim investigator recommends that an award not be
made to the claimant, the reason for his or her decision.

(f) The claim investigator shall file his or her finding of
fact and recommendation with the clerk within six months after the
filing of the application: Provided, That where there is active
criminal investigation or prosecution of the person or persons
alleged to have committed the criminally injurious conduct which is
the basis for the claimant's claim, the claim investigator shall
file his or her finding of fact and recommendation within six
months after the first of any final convictions or other final
determinations as to innocence or guilt, or any other final
disposition of criminal proceedings. In any case, an additional
time period may be provided by order of any Court of Claims judge
or commissioner upon good cause shown.

NOTE: The purpose of this bill is to increase the amount for
a victim’s relocation costs from $2,000 to $2,500. The bill permits
a victim to receive reasonable travels costs to attend probation
hearings of the offender. The bill permits the Court of Claims to
hire more than two claim investigators. The bill permits claim
investigators to acquire autopsy reports, including toxicology
results, from the State Medical Examiner. The bill redefines the
term “lost scholarship” to include a student loan.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.